If a current and a former client both consent to waive a conflict of interest, is there still a conflict, and must the consent be in writing?

Short answer The committee concluded that because the parties had consented to waive any conflict, no conflict is presented, but noted that RPC 1.7 requires the consent be written consent as that term is defined in the rules.

Bar

WSBA

Issued

1993

Apply this to your situation

This page answers the general question as of 1993. Ask about yours and see what the current Washington Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer asked about a possible conflict of interest between a current and a former client. The committee noted that since the parties had consented to waive any conflict of interest, no conflict is presented.

The committee did note that RPC 1.7 requires the consent be written consent, as that term is defined in the rules.

Currency note

This opinion was issued in 1993, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: If both clients consent to waive a conflict, is there still a conflict?

A: The committee said that because the parties had consented to waive any conflict, no conflict is presented.

Q: Does the consent have to be in writing?

A: Yes. The committee noted that RPC 1.7 requires the consent be written consent, as that term is defined in the rules.

Background and rules framework

The opinion applied RPC 1.7 and RPC 1.9 (corresponding to ABA Model Rules 1.7 and 1.9), which govern conflicts with current and former clients and allow a client to consent to waive certain conflicts. The committee's only qualification was formal: under RPC 1.7, the consent must be written consent as defined in the rules.

Citations and references

Rules of Professional Conduct:

ABA Model Rule 1.7 (conflict of interest; current clients; consent); Washington RPC 1.7
ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9

Source

Landing page: https://ao.wsba.org/print.aspx?ID=622

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1540
Year Issued: 1993
RPC(s): RPC 1.7; 1.9
Subject: Conflict of interest; waiver

The Committee reviewed your inquiry concerning a possible conflict of interest [between a current and former client], and noted that since the parties had consented to waive any conflict of interest, no conflict is presented. The Committee did note that RPC 1.7 requires the consent be written consent as that term is defined in the rules.

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